Rule 1 Appeals to the Regular Division; Correspondence; Fees; Representation
Rule Text
A Regular Division Appeals. Appeals to the Regular Division are either:
A(1) From a decision of the Magistrate Division; or
A(2) From the grant or denial of a motion for a protective order of the Magistrate Division as provided by ORS 305.430(4); or
A(3) By special designation as provided by ORS 305.501(1) and TCR 1 C. Note: Certain actions may originate in the Regular Division; see other example actions in TCR 7 A. See also TCR 4 (providing the circumstances of the court’s jurisdiction over a party).
B Appeals from the Magistrate Division.
B(1) Appeals from a Decision of the Magistrate Division. Upon receipt of a complaint accompanied by a fee as provided in TCR 1 E, the tax court clerk will file the complaint in the Regular Division. A copy of the magistrate’s written decision and any dispositive order is to be included with the complaint.
B(2) Appeals from the Grant or Denial of a Motion for a Protective Order. The grant or denial of a motion for a protective order by a magistrate of the Tax Court may be appealed to the Regular Division of the Tax Court by written petition. See TCR-MD 19 B. The protective order petition must be accompanied by a fee as provided in TCR 1 E.
B(2)(a) The protective order petition must be filed with the Regular Division of the Tax Court within 60 days of the grant or denial of the motion for a protective order. A copy of the protective order petition must be sent to the Magistrate Division. Once a protective order petition is filed, proceedings in the Magistrate Division will be suspended until the Regular Division issues its order.
B(2)(a)(i) Petitioner must serve each of the parties in the manner provided in TCR 9.
B(2)(a)(ii) In property tax cases, petitioner must also serve the Department of Revenue in the manner provided in TCR 9.
B(2)(b) An opposing party must respond to the protective order petition within 20 days from the date of service of the petition.
B(2)(c) The court may require oral argument before issuing an order on the protective order petition.
B(2)(d) The court will issue an order either granting or denying the protective order petition within 90 days from the filing of the petition, unless the tax court determines in its discretion that it requires additional time. ORS 305.430.
B(2)(e) Upon an order on the protective order petition from which no appeal is taken, or upon remand from the Supreme Court, the case will be returned to the Magistrate Division for further determination.
C Appeals by Special Designation. Appeals are specially designated for hearing in the Regular Division by two methods: (1) by rule, and (2) by court order.
C(1) Special Designation by Rule. Based on statutory language or direction, the following appeals must be filed directly with the Regular Division:
C(1)(a) Petitions or complaints for declaratory judgment under ORS chapter 28, including review of declaratory rulings of the Department of Revenue issued under ORS 305.105.
C(1)(b) Petitions for writ of mandamus and writ of review under ORS chapter 34.
C(1)(c) Petitions to determine effect of constitutional limits on property taxes. See ORS 305.583, ORS 305.585 and ORS 305.589.
C(1)(d) Local budget law complaints. ORS 294.461.
C(1)(e) Appeals involving local taxes described in ORS 305.410(4)(a), to the extent not specially designated under TCR 1 C(1)(a) or (b). Note: Taxes described in ORS 305.410(4)(a) are taxes imposed by a local government, other than taxes on, measured by, or reported on the same return as net income. See ORS 314.410(4) for explanation. Appeals involving local income taxes, or taxes or fees reported on a local income tax return, must be filed in the Magistrate Division. See Oregon Laws 2024, chapter 52 (amending ORS 304.410(4), ORS 34.030(2), and ORS 34.120(2)).
C(2) Special Designation by Court Order. Upon the written petition of a party or on the court’s own motion, an appeal pending in the Magistrate Division may be specially designated by court order for hearing in the Regular Division. ORS 305.501(1). A separate petition must be filed for each appeal a party wants considered for special designation. When a case has been specially designated, no additional fee is required. The court will transfer the file to the Regular Division where a new case number will be assigned.
C(2)(a) A petition for special designation must be filed by submitting a copy of the petition to the Regular Division and filing the petition in the pending Magistrate Division appeal. Once a petition is filed, proceedings in the Magistrate Division will be suspended until the Regular Division issues its order. A party filing a petition for special designation is subject to the rules regarding legal representation in Regular Division cases found in TCR 1 F.
C(2)(b) Service Requirements for Petitions of Special Designation and Responses. Petitions for Special Designation must be served on the parties prescribed in this subsection. Except as otherwise provided in this rule service must be in the manner provided in TCR 9.
C(2)(b)(i) For purposes of this rule, petitions for special designation must be served on the Department of Revenue by mailing a copy of the petition via certified or registered mail to the office of the Director of the Department of Revenue. Petitions for special designation must be served on a county assessor by mailing a copy of the petition via certified or registered mail to the office of the county assessor for the relevant county. Petitions for special designation must be served on the Portland Revenue Division by mailing a copy of the petition via certified or registered mail to the office of the Director of the Portland Revenue Division. No other means of service will be effective, unless otherwise authorized by the Department of Revenue or the county assessor or the Portland Revenue Division.
C(2)(b)(ii) In property tax cases where the petitioner is taxpayer and a county or county assessor is a defendant, petitioner must serve the petition for special designation on both county counsel for the relevant county and the Department of Revenue.
C(2)(b)(iii) In property tax cases where the petitioner is taxpayer and the Department of Revenue is a defendant but no county or county assessor is a defendant, petitioner must serve the petition on the Department of Revenue.
C(2)(b)(iv) In property tax cases where the petitioner is a county or county assessor, petitioner must, through county counsel, serve the petition on taxpayer and on the Department of Revenue.
C(2)(b)(v) In property tax cases where petitioner is the Department of Revenue, petitioner must serve the petition on taxpayer and, if a county or county assessor is a party to the case in the Magistrate Division, on the county assessor for the relevant county.
C(2)(b)(vi) In all cases other than cases involving property tax, if taxpayer is the petitioner, petitioner must serve the petition on the Department of Revenue or on the Portland Revenue Division in a case involving any local income tax administered by the Portland Revenue Division. If petitioner is the Department of Revenue or the Portland Revenue Division, petitioner must serve the petition on taxpayer.
C(2)(c) An opposing party must respond to the petition within 20 days from the date of service of the petition. The response of the opposing party must be filed by submitting a copy of the response to the Regular Division and electronically filing the response in the pending Magistrate Division appeal. The response must be served on all parties to the Magistrate Division Case. If the Department of Revenue is not a party to the Magistrate Division case but would, by virtue of ORS 305.501(1), become a party in the Regular Division if the petition were to be granted, any response must also be served on the Oregon Attorney General. A response to a petition for special designation must be served in the manner provided in TCR 9.
C(2)(d) The court will issue an order either granting or denying the petition within 30 days of filing the petition.
C(2)(e) Unless the court specifies otherwise, if the petition for special designation is granted, the time for filing any responsive pleading that was suspended while the petition was pending shall be 30 days after entry of the order granting the petition. The court will hold a case management conference to discuss procedural matters, including the intervention of other parties.
C(2)(f) If the petition for special designation is denied, proceedings in the Magistrate Division will resume at the point where the proceedings were suspended.
C(3) Special Designation Petition.
C(3)(a) Except upon agreement by all parties, a petition may not be filed:
C(3)(a)(i) In a case where a mediation is pending; or
C(3)(a)(ii) Within 60 days of a scheduled trial.
C(3)(b) The petition must include one or more of the following statements:
C(3)(b)(i) A statement that a mediation is not pending.
C(3)(b)(ii) A statement that a trial is not scheduled in the Magistrate Division within 60 days of the petition’s filing date.
C(3)(c) The absence of such statement(s) may be the basis for immediate denial of the petition.
C(4) Substitution of the Department of Revenue as a Party in Property Tax Cases.
C(4)(a)(i) When a property tax case involving a county or county assessor has been specially designated, the Department of Revenue will automatically be substituted for the county or county assessor as a party to the case. See ORS 305.501. This substitution will be reflected in the caption of the order of the court granting special designation. The court will serve a copy of any such order on the Attorney General and on the parties to the Magistrate Division case.
C(4)(a)(ii) If a county or county assessor wishes to remain a party to a case governed by TCR 1 C(4)(a)(i), the county or county assessor must file a Motion to Intervene. A motion to intervene under this rule may be filed simultaneously with a petition for special designation or at any time after the filing of the petition. A motion to intervene by a county or county assessor under this rule will be granted as of right unless opposed by the Department of Revenue.
C(5) Prepayment in Certain Specially Designated Cases. If the court grants a petition for special designation in a case involving a deficiency of taxes imposed upon or measured by net income, the tax assessed and all penalties and interest due, must be paid to the Department of Revenue within the time specified by the court. See ORS 305.419.
D Correspondence Subsequent to Filing. If the document was submitted for filing by means other than electronic filing, the tax court clerk will notify the parties of the filing date¹ and the case number assigned. Otherwise, the parties will be informed as specified in TCR 9. The case number must be placed on all subsequent documents filed in the case and on all correspondence concerning it. All subsequent correspondence addressed to the court by any party should indicate that copies have been mailed or delivered to the attorney for the adverse party, or if the party appears in propria persona only, then to the party. Except when correspondence is hand delivered to the court, where possible the same method of mail or delivery used for corresponding with the court should also be used for mailing or delivery to the adverse party or to attorneys for the adverse party.
E Fee. Unless exempt by law, the plaintiff must pay a fee as provided by ORS 305.490 and ORS 21.135. That fee must be tendered at the time of the filing of the complaint or petition. The current fee is $281.² The plaintiff may, by application, request the court to consider deferral or waiver of the fee, as provided under ORS 21.685. The plaintiff must make such application to the court at the time of filing the complaint.
F Representation.
F(1) Generally. Pursuant to ORS 9.320, the parties to any proceeding in the Regular Division must either appear in person or be represented by an active member of the Oregon State Bar. Entities including, but not limited to, corporations, partnerships, limited liability companies, and unincorporated associations, must appear through an attorney unless a specific statutory exception applies. A limited liability company or other entity that is designated as an entity separate from its owner for purposes of all taxes at issue in the case will be disregarded as an entity separate from its owner for purposes of the representation requirement. See, e.g., ORS 63.810. A person appearing in the capacity of a tax matters partner under ORS 305.242(2) or as a shareholder representing an S corporation under ORS 305.494 must appear through an attorney in any proceeding in the Regular Division unless a specific statutory exception applies. For purposes of this subsection, “any proceeding in the Regular Division” includes filing a petition for special designation, but does not include filing a response to a petition for special designation. A response to a petition for special designation may be filed by a representative who has appeared in the Magistrate Division proceedings.
F(2) Representing a Partnership or an S Corporation: Income Tax Matters.
F(2)(a) Partnership. Pursuant to ORS 305.242, with respect to only those matters involving taxes on or measured by net income, partners in a partnership may be represented by the designated tax matters partner. OAR 150-305-0180 and OAR 150-305-0182 contain the rules the court will follow as to the form of designation. A designation must be filed with the complaint or initial pleading.
F(2)(b) S Corporations. Pursuant to ORS 305.494, an S corporation (as defined in section 1361 of the Internal Revenue Code as amended and in effect on December 31, 2023) and shareholders in an S corporation may be represented by a shareholder in the same manner as if the S corporation were a partnership and the shareholder were a partner. Therefore, with respect to only those matters involving taxes on or measured by net income, a representative shareholder may be designated by the corporation and other shareholders. OAR 150-305-0170 contains the rules the court will follow as to the form of designation. A designation must be filed with the complaint or initial pleading.
F(3) Representing an S Corporation or Other Entities: Property and Other Tax Matters. In cases relating to property taxes and matters other than those related to a tax on or measured by net income, representation of an S corporation, partnership, limited liability company or other entity must be by a licensed attorney pursuant to the provisions of ORS 9.320.
G Use of Declaration under Penalty of Perjury in Lieu of Affidavit; “Declaration” Defined. A declaration under penalty of perjury, or an unsworn declaration under ORS 194.800 to 194.835, if the declarant is physically outside the boundaries of the United States, may be used in lieu of any affidavit required or allowed by these rules. A declaration under penalty of perjury may be made without notice to adverse parties, must be signed by the declarant and must include the following sentence in prominent letters immediately above the signature of the declarant: “I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.” As used in these rules, “declaration” means a declaration under penalty of perjury.
H Complaint Deemed Filed When Mailed or Sent by Private Express Carrier; Satisfactory Evidence.
H(1) Under ORS 305.418(2)(a), when the court receives a complaint, the court will deem the complaint “filed” on the following date:
H(1)(a) If the plaintiff deposits the complaint in the United States mail and the United States Postal Service (USPS) affixes a post-office cancellation mark on the envelope, the court will deem the complaint filed on the date of the post-office cancellation mark.
H(1)(b) If the plaintiff deposits the complaint in the United States mail and the plaintiff provides the court satisfactory evidence from the USPS of the date of mailing, the court will deem the complaint filed on the date of mailing.
H(1)(c) If the plaintiff dispatches the complaint via a private express carrier and the plaintiff provides the court satisfactory evidence from the private express carrier of the date of dispatch, the court will deem the complaint filed on the date of dispatch.
H(2) Under ORS 305.418(2)(b), when the court does not receive a complaint that the plaintiff claims to have filed, the court will deem the complaint “filed” on the date of mailing or dispatch if the plaintiff does all of the following:
H(2)(a) Provides the court satisfactory evidence that the complaint was mailed or dispatched to the court’s correct address. A receipt for USPS registered mail, USPS certified mail, or for a similar service from a private express carrier generally is satisfactory evidence that the complaint was sent to the address listed on the receipt.
H(2)(b) Provides the court satisfactory evidence of the date of mailing or dispatch; and
H(2)(c) Files a duplicate complaint within 90 days after the date the plaintiff claims to have mailed or dispatched the original complaint. For purposes of TCR 1, “satisfactory evidence” of the date of mailing or dispatch may include, but is not limited to, USPS or private express carrier receipts, shipment notifications, tracking history, or other documentary evidence from the USPS or the private express carrier. The court will deem the date of filing to be the date on which the evidence shows the sender took all steps needed to send the complaint by USPS or the private express carrier. TCR amended June 6, 2024; Jan 2, 2025, Jan 1, 2026.